Arkansas' Gross Receipts Act imposes a tax on receipts from the
sale of all tangible personal property and specified services, but
expressly exempts,
inter alia, certain receipts from
newspaper and magazine sales. In 1987, Act 188 amended the Gross
Receipts Act to impose the tax on cable television. Petitioners in
No. 90 38, a cable television subscriber, a cable operator, and a
cable trade organization (cable petitioners), brought this class
action in the State Chancery Court, contending that their
expressive rights under the First Amendment and their rights under
the Equal Protection Clause of the Fourteenth Amendment were
violated by the extension of the tax to cable services, the
exemption from the tax of newspapers and magazines, and the
exclusion from the list of services subject to the tax of scrambled
satellite broadcast television services to home dish antennae
owners. In 1989, shortly after the Chancery Court upheld the
constitutionality of Act 188, Arkansas adopted Act 769, which
extended the tax to, among other things, all television services to
paying customers. On appeal, the State Supreme Court held that the
tax was not invalid after the passage of Act 769 because the
Constitution does not prohibit the differential taxation of
different media. However, believing that the First Amendment does
prohibit discriminatory taxation among members of the same medium,
and that cable and scrambled satellite television services were
"substantially the same," the Supreme Court held that the tax was
unconstitutional for the period during which it applied to cable
but not satellite broadcast services.
Held:
1. Arkansas' extension of its generally applicable sales tax to
cable television services alone, or to cable and satellite
services, while exempting the print media, does not violate the
First Amendment. Pp.
499 U. S.
444-453.
(a) Although cable television, which provides news, information,
and entertainment to its subscribers, is engaged in "speech" and is
part of the "press" in much of its operation, the fact that it is
taxed differently from other media does not, by itself, raise First
Amendment concerns.
Page 499 U. S. 440
The Arkansas tax presents none of the First Amendment
difficulties that have led this Court to strike down differential
taxation of speakers.
See, e.g., Grosjean v. American Press
Co., 297 U. S. 233;
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575;
Arkansas Writers' Project, Inc. v. Ragland, 481 U.
S. 221. It is a tax of general applicability covering
all tangible personal property and a broad range of services and,
thus, does not single out the press, and thereby threaten to hinder
it as a watchdog of government activity. Furthermore, there is no
indication that Arkansas has targeted cable television in a
purposeful attempt to interfere with its First Amendment
activities, nor is the tax structured so as to raise suspicion that
it was intended to do so. Arkansas has not selected a small group
of speakers to bear fully the burden of the tax, since, even if the
State Supreme Court's finding that cable and satellite television
are the same medium is accepted, Act 188 extended the tax uniformly
to the approximately 100 cable systems then operating in the State.
Finally, the tax is not content-based, since there is nothing in
the statute's language that refers to the content of mass media
communications, and since the record contains no evidence that the
variety of programming cable television offers subscribers differs
systematically in its message from that communicated by satellite
broadcast programming, newspapers, or magazines. Pp.
499 U. S.
444-449.
(b) Thus, cable petitioners can prevail only if the Arkansas tax
scheme presents "an additional basis" for concluding that the State
has violated their First Amendment rights.
See Arkansas
Writers' supra, at
481 U.S.
233. This Court's decisions do not support their argument
that such a basis exists here, because the tax discriminates among
media and discriminated for a time within a medium. Taken together,
cases such as
Regan v. Taxation with Representation of
Washington, 461 U. S. 540,
Mabee v. White Plains Publishing Co., 327 U.
S. 178, and
Oklahoma Press Publishing Co. v.
Walling, 327 U. S. 186,
establish that differential taxation of speakers, even members of
the press, does not implicate the First Amendment unless the tax is
directed at, or presents the danger of suppressing, particular
ideas. Nothing about Arkansas' choice to exclude or exempt certain
media from its tax has ever suggested an interest in censoring the
expressive activities of cable television. Nor does anything in the
record indicate that this broad-based, content-neutral tax is
likely to stifle the free exchange of ideas. Pp.
499 U. S.
449-453.
2. The question whether Arkansas' temporary tax distinction
between cable and satellite services violated the Equal Protection
Clause must be addressed by the State Supreme Court on remand. P.
499 U. S.
453.
301 Ark. 483,
785 S.W.2d
202 (1990), affirmed in part, reversed in part, and
remanded.
Page 499 U. S. 441
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, KENNEDY, and SOUTER,
JJ., joined. MARSHALL, J., filed a dissenting opinion, in which
BLACKMUN, J., joined,
post, p.
499 U. S.
454.
JUSTICE O'CONNOR delivered the opinion of the Court.
These consolidated cases require us to consider the
constitutionality of a state sales tax that excludes or exempts
certain segments of the media, but not others.
I
Arkansas' Gross Receipts Act imposes a 4% tax on receipts from
the sale of all tangible personal property and specified services.
Ark.Code Ann. §§ 26-52-301, 26-52-302 (1987 and Supp.1989). The Act
exempts from the tax certain sales of goods and services. §
26-52-401 (Supp.1989). Counties
Page 499 U. S. 442
within Arkansas impose a 1% tax on all goods and services
subject to taxation under the Gross Receipts Act, §§ 26-74-307,
26-74-222 (1987 and Supp.1989), and cities may impose a further 1/2
or 1% tax on these items, § 26-75-307 (1987).
The Gross Receipts Act expressly exempts receipts from
subscription and over-the-counter newspaper sales and subscription
magazine sales.
See §§ 26-52-401(4), (14) (Supp.1989);
Revenue Policy Statement 1988-1 (Mar. 10, 1988), reprinted in CCH
Ark.Tax Rep. 1169-415. Before 1987, the Act did not list among
those services subject to the sales tax either cable television
[
Footnote 1] or scrambled
satellite broadcast television services to home dish-antennae
owners. [
Footnote 2]
See § 26-52-301 (1987). In 1987, Arkansas adopted Act 188,
which amended the Gross Receipts Act to impose the sales tax on
cable television. 1987 Ark.Gen.Acts, No. 188, § 1.
Daniel L. Medlock, a cable television subscriber, Community
Communications Co., a cable television operator, and the Arkansas
Cable Television Association, Inc., a trade organization composed
of approximately 80 cable operators with systems throughout the
State (cable petitioners), brought this class action in the
Arkansas Chancery Court to challenge the extension of the sales tax
to cable television services. Cable petitioners contended that
their expressive activities are protected by the First Amendment
and are comparable to those of newspapers, magazines, and scrambled
satellite broadcast television. They argued that Arkansas'
sales
Page 499 U. S. 443
taxation of cable services, and exemption or exclusion from the
tax of newspapers, magazines, and satellite broadcast services,
violated their constitutional rights under the First Amendment and
under the Equal Protection Clause of the Fourteenth Amendment.
The Chancery Court granted cable petitioners' motion for a
preliminary injunction, requiring Arkansas to place in escrow the
challenged sales taxes and to keep records identifying collections
of the taxes. Both sides introduced extensive testimony and
documentary evidence at the hearing on this motion and at the
subsequent trial. Following the trial, the Chancery Court concluded
that cable television's necessary use of public rights-of-way
distinguishes it for constitutional purposes from other media. It
therefore upheld the constitutionality of Act 188, dissolved its
preliminary injunction, and ordered all funds collected in escrow
released.
In 1989, shortly after the Chancery Court issued its decision,
Arkansas adopted Act 769, which extended the sales tax to
"all other distribution of television, video or radio services
with or without the use of wires provided to subscribers or paying
customers or users."
1989 Ark.Gen.Acts, No. 769, § 1. On appeal to the Arkansas
Supreme Court, cable petitioners again challenged the State's sales
tax on the ground that, notwithstanding Act 769, it continued
unconstitutionally to discriminate against cable television. The
Supreme Court rejected the claim that the tax was invalid after the
passage of Act 769, holding that the Constitution does not prohibit
the differential taxation of different media.
Medlock v.
Pledger, 301 Ark. 483, 487,
785 S.W.2d
202, 204 (1990). The Court believed, however, that the First
Amendment prohibits discriminatory taxation among members of the
same medium. On the record before it, the court found that cable
television services and satellite broadcast services to home
dish-antennae owners were "substantially the same."
Ibid.
The State Supreme Court rejected the Chancery Court's conclusion
that cable television's use of public
Page 499 U. S. 444
rights-of-way justified its differential sales tax treatment,
explaining that cable operators already paid franchise fees for
that right.
Id. at 485, 785 S.W.2d at 203. It therefore
held that Arkansas' sales tax was unconstitutional under the First
Amendment for the period during which cable television, but not
satellite broadcast services, were subject to the tax.
Id.
at 487; 785 S.W.2d at 204.
Both cable petitioners and the Arkansas Commissioner of Revenues
petitioned this Court for certiorari. We consolidated these
petitions and granted certiorari, 498 U.S. 809 (1990), in order to
resolve the question, left open in
Arkansas Writers' Project,
Inc. v. Ragland, 481 U. S. 221,
481 U.S. 233 (1987),
whether the First Amendment prevents a State from imposing its
sales tax on only selected segments of the media.
II
Cable television provides to its subscribers news, information,
and entertainment. It is engaged in "speech" under the First
Amendment, and is, in much of its operation, part of the "press."
See Los Angeles v. Preferred Communications, Inc.,
476 U. S. 488,
476 U. S. 494
(1986). That it is taxed differently from other media does not, by
itself, however, raise First Amendment concerns. Our cases have
held that a tax that discriminates among speakers is
constitutionally suspect only in certain circumstances.
In
Grosjean v. American Press Co., 297 U.
S. 233 (1936), the Court considered a First Amendment
challenge to a Louisiana law that singled out publications with
weekly circulations above 20,000 for a 2% tax on gross receipts
from advertising. The tax fell exclusively on 13 newspapers. Four
other daily newspapers and 120 weekly newspapers with weekly
circulations of less than 20,000 were not taxed. The Court
discussed at length the pre-First Amendment English and American
tradition of taxes imposed exclusively on the press. This invidious
form of censorship was intended to curtail the circulation of
newspapers, and thereby prevent the
Page 499 U. S. 445
people from acquiring knowledge of government activities.
Id. at
297 U. S.
246-251. The Court held that the tax at issue in
Grosjean was of this type, and was therefore
unconstitutional.
Id. at
297 U. S.
250.
In
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575
(1983), we noted that it was unclear whether the result in
Grosjean depended on our perception in that case that the
State had imposed the tax with the intent to penalize a selected
group of newspapers or whether the structure of the tax was
sufficient to invalidate it.
See 460 U.S. at
460 U. S. 580
(citing cases and commentary).
Minneapolis Star resolved
any doubts about whether direct evidence of improper censorial
motive is required in order to invalidate a differential tax on
First Amendment grounds: "Illicit legislative intent is not the
sine qua non of a violation of the First Amendment."
Id. at
460 U. S.
592.
At issue in
Minneapolis Star was a Minnesota special
use tax on the cost of paper and ink consumed in the production of
publications. The tax exempted the first $100,000 worth of paper
and ink consumed annually. Eleven publishers, producing only 14 of
the State's 388 paid circulation newspapers, incurred liability
under the tax in its first year of operation. The Minneapolis Star
and Tribune Company (Star Tribune) was responsible for roughly
two-thirds of the total revenue raised by the tax. The following
year, 13 publishers, producing only 16 of the State's 374 paid
circulation papers, paid the tax. Again, the Star Tribune bore
roughly two-thirds of the tax's burden. We found no evidence of
impermissible legislative motive in the case apart from the
structure of the tax itself.
We nevertheless held the Minnesota tax unconstitutional for two
reasons. First, the tax singled out the press for special
treatment. We noted that the general applicability of any
burdensome tax law helps to ensure that it will be met with
widespread opposition. When such a law applies only to a single
constituency, however, it is insulated from this political
Page 499 U. S. 446
constraint.
See id. at
460 U. S. 585.
Given "the basic assumption of our political system that the press
will often serve as an important restraint on government," we
feared that the threat of exclusive taxation of the press could
operate "as effectively as a censor to check critical comment."
Id. at
460 U. S. 585.
"Differential taxation of the press, then, places such a burden on
the interests protected by the First Amendment," that it is
presumptively unconstitutional.
Ibid.
Beyond singling out the press, the Minnesota tax targeted a
small group of newspapers -- those so large that they remained
subject to the tax despite its exemption for the first $100,000 of
ink and paper consumed annually. The tax thus resembled a penalty
for certain newspapers. Once again, the scheme appeared to have
such potential for abuse that we concluded that it violated the
First Amendment:
"[W]hen the exemption selects such a narrowly defined group to
bear the full burden of the tax, the tax begins to resemble more a
penalty for a few of the largest newspapers than an attempt to
favor struggling smaller enterprises."
Id. at
460 U. S.
592.
Arkansas Writers' Project, Inc. v. Ragland,
481 U. S. 221
(1987), reaffirmed the rule that selective taxation of the press
through the narrow targeting of individual members offends the
First Amendment. In that case, Arkansas Writers' Project sought a
refund of state taxes it had paid on sales of the Arkansas Times, a
general interest magazine, under Arkansas' Gross Receipts Act of
1941. Exempt from the sales tax were receipts from sales of
religious, professional, trade and sports magazines.
See
id. at
481 U. S.
224-226. We held that Arkansas' magazine exemption,
which meant that only "a few Arkansas magazines pay any sales tax,"
operated in much the same way as did the $100,000 exemption in
Minneapolis Star, and therefore suffered from the same
type of discrimination identified in that case.
Id. at
481 U. S. 229.
Moreover, the basis on which the tax differentiated among magazines
depended entirely on their content.
Ibid.
Page 499 U. S. 447
These cases demonstrate that differential taxation of First
Amendment speakers is constitutionally suspect when it threatens to
suppress the expression of particular ideas or viewpoints. Absent a
compelling justification, the government may not exercise its
taxing power to single out the press.
See Grosjean, 297
U.S. at
297 U. S.
244-249;
Minneapolis Star, 460 U.S. at
460 U. S. 585.
The press plays a unique role as a check on government abuse, and a
tax limited to the press raises concerns about censorship of
critical information and opinion. A tax is also suspect if it
targets a small group of speakers.
See Minneapolis Star,
supra, at
460 U. S. 575;
Arkansas Writers, 481 U.S. at
481 U. S. 229.
Again, the fear is censorship of particular ideas or viewpoints.
Finally, for reasons that are obvious, a tax will trigger
heightened scrutiny under the First Amendment if it discriminates
on the basis of the content of taxpayer speech.
See id. at
481 U. S.
229-231.
The Arkansas tax at issue here presents none of these types of
discrimination. The Arkansas sales tax is a tax of general
applicability. It applies to receipts from the sale of all tangible
personal property and a broad range of services, unless within a
group of specific exemptions. Among the services on which the tax
is imposed are natural gas, electricity, water, ice, and steam
utility services; telephone, telecommunications, and telegraph
service; the furnishing of rooms by hotels, apartment hotels,
lodging houses, and tourist camps; alteration, addition, cleaning,
refinishing, replacement, and repair services; printing of all
kinds; tickets for admission to places of amusement or athletic,
entertainment, or recreational events; and fees for the privilege
of having access to or use of amusement, entertainment, athletic,
or recreational facilities.
See Ark.Code Ann. § 26-52-301
(Supp.1989). The tax does not single out the press, and does not
therefore threaten to hinder the press as a watchdog of government
activity.
Cf. Minneapolis Star, supra, 460 U.S. at
460 U. S. 585.
We have said repeatedly that a State may impose on the press a
generally applicable tax.
See Swaggart Ministries
Page 499 U. S. 448
v. Board of Equalization of California, 493 U.
S. 378,
493 U. S.
387-388 (1990);
Arkansas Writers supra, 481
U.S. at
481 U. S. 229;
Minneapolis Star, supra, 460 U.S. at
460 U. S. 586,
and n. 9.
Furthermore, there is no indication in this case that Arkansas
has targeted cable television in a purposeful attempt to interfere
with its First Amendment activities. Nor is the tax one that is
structured so as to raise suspicion that it was intended to do so.
Unlike the taxes involved in
Grosjean and
Minneapolis
Star, the Arkansas tax has not selected a narrow group to bear
fully the burden of the tax.
The tax is also structurally dissimilar to the tax involved in
Arkansas Writers'. In that case, only "a few" Arkansas
magazines paid the State's sales tax.
See Arkansas
Writers', 481 U.S. at
481 U. S. 229, and n. 4. Arkansas Writers' Project
maintained before the Court that the Arkansas Times was the only
Arkansas publication that paid sales tax. The Commissioner
contended that two additional periodicals also paid the tax. We
responded that, "[w]hether there are three Arkansas magazines
paying tax or only one, the burden of the tax clearly falls on a
limited group of publishers."
Id. at
481 U. S. 229,
n. 4. In contrast, Act 188 extended Arkansas' sales tax uniformly
to the approximately 100 cable systems then operating in the State.
See App. to Pet. for Cert. in No. 90-38, p. 12a. While
none of the seven scrambled satellite broadcast services then
available in Arkansas, Tr. 12 (Aug.19, 1987), was taxed until Act
769 became effective, Arkansas' extension of its sales tax to cable
television hardly resembles a "penalty for a few."
See
Minneapolis Star, supra, 460 U.S. at
460 U. S. 592;
Arkansas Writers supra, 481 U.S. at
481 U. S. 229,
and n. 4.
The danger from a tax scheme that targets a small number of
speakers is the danger of censorship; a tax on a small number of
speakers runs the risk of affecting only a limited range of views.
The risk is similar to that from content-based regulation: it will
distort the market for ideas.
"The constitutional right of free expression is . . . intended
to remove governmental restraints from the arena of public
discussion,
Page 499 U. S. 449
putting the decision as to what views shall be voiced largely
into the hands of each of us . . . in the belief that no other
approach would comport with the premise of individual dignity and
choice upon which our political system rests."
Cohen v. California, 403 U. S. 15,
403 U. S. 24
(1971). There is no comparable danger from a tax on the services
provided by a large number of cable operators offering a wide
variety of programming throughout the State. That the Arkansas
Supreme Court found cable and satellite television to be the same
medium does not change this conclusion. Even if we accept this
finding, the fact remains that the tax affected approximately 100
suppliers of cable television services. This is not a tax structure
that resembles a penalty for particular speakers or particular
ideas.
Finally, Arkansas' sales tax is not content-based. There is
nothing in the language of the statute that refers to the content
of mass media communications. Moreover, the record establishes that
cable television offers subscribers a variety of programming that
presents a mixture of news, information, and entertainment. It
contains no evidence, nor is it contended, that this material
differs systematically in its message from that communicated by
satellite broadcast programming, newspapers, or magazines.
Because the Arkansas sales tax presents none of the First
Amendment difficulties that have led us to strike down differential
taxation in the past, cable petitioners can prevail only if the
Arkansas tax scheme presents "an additional basis" for concluding
that the State has violated petitioners First Amendment rights.
See Arkansas Writers' supra, 481 U.S. at
481 U.S. 233. Petitioners argue that
such a basis exists here: Arkansas' tax discriminates among media
and, if the Arkansas Supreme Court's conclusion regarding cable and
satellite television is accepted, discriminated for a time within a
medium. Petitioners argue that such intermedia and intramedia
discrimination, even in the absence of any evidence of intent to
suppress speech or of any effect on the expression of
particular
Page 499 U. S. 450
ideas, violates the First Amendment. Our cases do not support
such a rule.
Regan v. Taxation with Representation of Washington,
461 U. S. 540
(1983), stands for the proposition that a tax scheme that
discriminates among speakers does not implicate the First Amendment
unless it discriminates on the basis of ideas. In that case, we
considered provisions of the Internal Revenue Code that
discriminated between contributions to lobbying organizations. One
section of the Code conferred tax-exempt status on certain
nonprofit organizations that did not engage in lobbying activities.
Contributions to those organizations were deductible. Another
section of the Code conferred tax-exempt status on certain other
nonprofit organizations that did lobby, but contributions to them
were not deductible. Taxpayers contributing to veterans'
organizations were, however, permitted to deduct their
contributions regardless of those organizations' lobbying
activities.
The tax distinction between these lobbying organizations did not
trigger heightened scrutiny under the First Amendment.
Id.
at
461 U. S.
546-551. We explained that a legislature is not required
to subsidize First Amendment rights through a tax exemption or tax
deduction. [
Footnote 3]
Id. at
461 U. S. 546.
For this proposition, we relied on
Cammarano v. United
States, 358 U. S. 498
(1959). In
Cammarano, the Court considered an Internal
Revenue regulation that denied a tax deduction for money spent by
businesses on publicity programs directed at pending state
legislation. The Court held that the regulation did not violate the
First Amendment because it did not discriminate on the basis of who
was spending the money on
Page 499 U. S. 451
publicity or what the person or business was advocating. The
regulation was therefore "plainly not
aimed at the suppression
of dangerous ideas.'" Id. at 358 U. S. 513,
quoting Speiser v. Randall, 357 U.
S. 513, 357 U. S. 519
(1958).
Regan, while similar to
Cammarano, presented
the additional fact that Congress had chosen to exempt from taxes
contributions to veterans' organizations, while not exempting other
contributions. This did not change the analysis. Inherent in the
power to tax is the power to discriminate in taxation.
"Legislatures have especially broad latitude in creating
classifications and distinctions in tax statutes."
Regan,
supra, 461 U.S. at
461 U. S. 547.
See also Madden v. Kentucky, 309 U. S.
83,
309 U. S. 87-88
(1940);
New York Rapid Transit Corp. v. New York City,
303 U. S. 573,
303 U. S. 578
(1938);
Magoun v. Illinois Trust & Savings Bank,
170 U. S. 283,
170 U. S. 294
(1898).
Cammarano established that the government need not
exempt speech from a generally applicable tax.
Regan
established that a tax scheme does not become suspect simply
because it exempts only some speech.
Regan reiterated in
the First Amendment context the strong presumption in favor of duly
enacted taxation schemes. In so doing, the Court quoted the rule
announced more than 40 years earlier in
Madden, an equal
protection case:
"The broad discretion as to classification possessed by a
legislature in the field of taxation has long been recognized. . .
. [T]he passage of time has only served to underscore the wisdom of
that recognition of the large area of discretion which is needed by
a legislature in formulating sound tax policies. Traditionally
classification has been a device for fitting tax programs to local
needs and usages in order to achieve an equitable distribution of
the tax burden. It has, because of this, been pointed out that in
taxation, even more than in other fields, legislatures possess the
greatest freedom in classification. Since the members of a
legislature necessarily enjoy a familiarity with local conditions
which this Court cannot
Page 499 U. S. 452
have, the presumption of constitutionality can be overcome only
by the most explicit demonstration that a classification is a
hostile and oppressive discrimination against particular persons
and classes."
Madden, supra, 309 U.S. at
309 U. S. 87-88
(footnotes omitted), quoted in
Regan, 461 U.S. at
461 U. S.
547-548.
On the record in
Regan, there appeared no such "hostile
and oppressive discrimination." We explained that
"[t]he case would be different if Congress were to discriminate
invidiously in its subsidies in such a way as to aim at the
suppression of dangerous ideas."
Id. at
461 U. S. 548
(internal quotations omitted). But that was not the case. The
exemption for contributions to veterans' organizations applied
without reference to the content of the speech involved; it was not
intended to suppress any ideas; and there was no demonstration that
it had that effect.
Ibid. Under these circumstances, the
selection of the veterans' organizations for a tax preference was
"obviously a matter of policy and discretion."
Id. at
461 U. S. 549
(internal quotations omitted).
That a differential burden on speakers is insufficient by itself
to raise First Amendment concerns is evident as well from
Mabee
v. White Plains Publishing Co., 327 U.
S. 178 (1946), and
Oklahoma Press Publishing Co. v.
Walling, 327 U. S. 186
(1946). Those cases do not involve taxation, but they do involve
government action that places differential burdens on members of
the press. The Fair Labor Standards Act of 1938, 52 Stat. 1060, as
amended, 29 U.S.C. § 201
et seq., applies generally to
newspapers as to other businesses, but it exempts from its
requirements certain small papers. § 213(a)(8). Publishers of
larger daily newspapers argued that the differential burden thereby
placed on them violates the First Amendment. The Court upheld the
exemption because there was no indication that the government had
singled out the press for special treatment,
Walling,
supra, at
327 U. S. 194,
or that the exemption was a "
deliberate and
Page 499 U. S.
453
calculated device'" to penalize a certain group of
newspapers, Mabee, supra, 327 U.S. at 327 U. S. 184,
quoting Grosjean, 297 U.S. at 297 U. S.
250.
Taken together,
Regan, Mabee, and
Oklahoma
Press establish that differential taxation of speakers, even
members of the press, does not implicate the First Amendment unless
the tax is directed at, or presents the danger of suppressing,
particular ideas. That was the case in
Grosjean, Minneapolis
Star, and
Arkansas Writers', but it is not the case
here. The Arkansas Legislature has chosen simply to exclude or
exempt certain media from a generally applicable tax. Nothing about
that choice has ever suggested an interest in censoring the
expressive activities of cable television. Nor does anything in
this record indicate that Arkansas' broad-based, content-neutral
sales tax is likely to stifle the free exchange of ideas. We
conclude that the State's extension of its generally applicable
sales tax to cable television services alone, or to cable and
satellite services, while exempting the print media, does not
violate the First Amendment.
Before the Arkansas Chancery Court, cable petitioners contended
that the State's tax distinction between cable and other media
violated the Equal Protection Clause of the Fourteenth Amendment as
well as the First Amendment. App. to Pet. for Cert. in No. 90-38,
p. 21a. The Chancery Court rejected both claims, and cable
petitioners challenged these holdings before the Arkansas Supreme
Court. That Court did not reach the equal protection question as to
the State's temporary tax distinction between cable and satellite
services, because it disallowed that distinction on First Amendment
grounds. We leave it to the Arkansas Supreme Court to address this
question on remand.
For the foregoing reasons, the judgment of the Arkansas Supreme
Court is affirmed in part and reversed in part, and the cases are
remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
Page 499 U. S. 454
[
Footnote 1]
Cable systems receive television, radio, or other signals
through antennae located at their so-called "headends." Information
gathered in this way, as well as any other material that the system
operator wishes to transmit, is then conducted through cables
strung over utility poles and through underground conduits to
subscribers.
See generally D. Brenner, M. Price, & M.
Meyerson, Cable Television and Other Non broadcast Video: Law and
Policy § 1.03 (1989).
[
Footnote 2]
Satellite television broadcast services transmit over-the-air
"scrambled" signals directly to the satellite dishes of
subscribers, who must pay for the right to view the signals.
See generally A. Easton & S. Easton, The Complete
Sourcebook of Home Satellite TV 57-66 (1988).
[
Footnote 3]
Certain
amici in support of cable petitioners argue
that
Regan is distinguishable from this case because the
petitioners in
Regan were complaining that their
contributions to lobbying organizations should be tax deductible,
while cable petitioners complain that sales of their services
should be tax exempt. This is a distinction without a difference.
As we explained in
Regan, "[b]oth tax exemptions and tax
deductibility are a form of subsidy that is administered through
the tax system."
Regan, 461 U.S. at
461 U. S.
544.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins,
dissenting.
This Court has long recognized that the freedom of the press
prohibits government from using the tax power to discriminate
against individual members of the media or against the media as a
whole.
See Grosjean v. American Press Co., 297 U.
S. 233 (1936);
Minneapolis Star Tribune Co. v.
Minnesota Comm'r of Revenue, 460 U. S. 575
(1983);
Arkansas Writers' Project, Inc. v. Ragland,
481 U. S. 221
(1987). The Framers of the First Amendment, we have explained,
specifically intended to prevent government from using disparate
tax burdens to impair the untrammeled dissemination of information.
We granted certiorari in this case to consider whether the
obligation not to discriminate against individual members of the
press prohibits the State from taxing one information medium --
cable television -- more heavily than others. The majority's answer
to this question -- that the State is free to discriminate between
otherwise like-situated media so long as the more heavily taxed
medium is not too "small" in number -- is no answer at all, for it
fails to explain which media actors are entitled to equal tax
treatment. Indeed, the majority so adamantly proclaims the
irrelevance of this problem that its analysis calls into question
whether any general obligation to treat media actors even-handedly
survives today's decision. Because I believe the majority has
unwisely cut back on the principles that inform our selective
taxation precedents, and because I believe that the First Amendment
prohibits the State from singling out a particular information
medium for heavier tax burdens than are borne by like-situated
media, I dissent.
I
A
Our decisions on selective taxation establish a
nondiscrimination principle for like-situated members of the press.
Under this principle, "differential treatment, unless justified
Page 499 U. S. 455
by some special characteristic of the press, . . . is
presumptively unconstitutional," and must be struck down "unless
the State asserts a counterbalancing interest of compelling
importance that it cannot achieve without differential taxation."
Minneapolis Star, supra, 460 U.S. at
460 U. S.
585.
The nondiscrimination principle is an instance of government's
general First Amendment obligation not to interfere with the press
as an institution. As the Court explained in
Grosjean, the
purpose of the Free Press Clause "was to preserve an untrammeled
press as a vital source of public information." 297 U.S. at
297 U. S. 250.
Reviewing both the historical abuses associated with England's
infamous "
taxes on knowledge'" and the debates surrounding
ratification of the Constitution, see id. at 297 U. S.
246-250; Minneapolis Star, 460 U.S. at
460 U. S.
583-586, and nn. 6-7, our decisions have recognized that
the Framers viewed selective taxation as a distinctively potent
"means of abridging the freedom of the press," id. at
460 U. S. 586,
n. 7.
We previously have applied the nondiscrimination principle in
two contexts. First, we have held that this principle prohibits the
State from imposing on the media tax burdens not borne by
like-situated nonmedia enterprises. Thus, in
Minneapolis
Star, we struck down a use tax that applied to the ink and
paper used in newspaper production but not to any other item used
as a component of a good to be sold at retail.
See id. at
460 U. S. 578,
460 U. S.
581-582. Second, we have held that the nondiscrimination
principle prohibits the State from taxing individual members of the
press unequally. Thus, as an alternative ground in
Minneapolis
Star, we concluded that the State's use tax violated the First
Amendment because it exempted the first $100,000 worth of ink and
paper consumed, and thus effectively singled out large publishers
for a disproportionate tax burden.
See id. at
460 U. S.
591-592. Similarly, in
Arkansas Writers '
Project, we concluded that selective exemptions for certain
periodicals rendered unconstitutional the application of a general
sales tax to the remaining
Page 499 U. S. 456
periodicals "because [the tax] [was] not evenly applied to
all magazines."
See 481 U.S. at
481 U. S. 229
(emphasis added);
see also Grosjean v. American Press Co.,
supra, (tax applied only to newspapers that meet circulation
threshold unconstitutionally discriminates against more widely
circulated newspapers).
Before today, however, we had not addressed whether the
nondiscrimination principle prohibits the State from singling out a
particular information medium for tax burdens not borne by other
media.
Grosjean and
Minneapolis Star both
invalidated tax schemes that discriminated between different
members of a single medium, namely, newspapers. Similarly,
Arkansas Writers' Project invalidated a general sales tax
because it "treat[ed] some magazines less favorably than others,"
481 U.S. at
481 U. S. 229,
leaving open the question whether less favorable tax treatment of
magazines than of newspapers furnished an additional ground for
invalidating the scheme,
see id. at
481 U.S. 233. This case squarely
presents the question whether the State may discriminate between
distinct information media, for under Arkansas' general sales tax
scheme, cable operators pay a sales tax on their subscription fees
that is not paid by newspaper or magazine companies on their
subscription fees or by television or radio broadcasters on their
advertising revenues. [
Footnote
2/1] In my view, the principles
Page 499 U. S. 457
that animate our selective taxation cases clearly condemn this
form of discrimination.
B
Although cable television transmits information by distinctive
means, the information service provided by cable does not differ
significantly from the information services provided by Arkansas'
newspapers, magazines, television broadcasters, and radio stations.
This Court has recognized that cable operators exercise the same
core press function of "communication of ideas as do the
traditional enterprises of newspaper and book publishers, public
speakers, and pamphleteers,"
Los Angeles v. Preferred
Communications, Inc., 476 U. S. 488,
476 U. S. 494
(1986), and that "[c]able operators now share with broadcasters a
significant amount of editorial discretion regarding what their
programming will include,"
FCC v. Midwest Video Corp.,
440 U. S. 689,
440 U. S. 707
(1979).
See also ante at
499 U. S. 444
(acknowledging that cable television is "part of the
press'").
In addition, the cable-service providers in this case put on
extensive and unrebutted proof at trial designed to show that
consumers regard the news, sports, and entertainment features
provided by cable as largely interchangeable with the services
provided by other members of the
Page 499 U. S.
458
print and electronic media. See App. 81-85,
100-101, 108, 115, 133-137, 165-170. See generally Competition,
Rate Deregulation and the Commission's Policies Relating to
Provision of Cable Television Service, 5 FCC Record 4962, 4967
(1990) (discussing competition between cable and other forms of
television).
Because cable competes with members of the print and electronic
media in the larger information market, the power to discriminate
between these media triggers the central concern underlying the
nondiscrimination principle: the risk of covert censorship. The
nondiscrimination principle protects the press from censorship
prophylactically, condemning any selective taxation scheme that
presents the "
potential for abuse" by the State,
Minneapolis Star, 460 U.S. at
460 U. S. 592
(emphasis added), independent of any actual "evidence of an
improper censorial motive,"
Arkansas Writers' Project,
supra, 481 U.S. at
481 U. S. 228;
see Minneapolis Star, supra, 460 U.S. at
460 U. S. 592
("Illicit legislative intent is not the
sine qua non of a
violation of the First Amendment"). The power to discriminate among
like-situated media presents such a risk. By imposing tax burdens
that disadvantage one information medium relative to another, the
State can favor those media that it likes and punish those that it
dislikes.
Inflicting a competitive disadvantage on a disfavored medium
violates the First Amendment "command that the government . . .
shall not impede the free flow of ideas."
Associated Press v.
United States, 326 U. S. 1,
326 U. S. 20
(1945). We have previously recognized that differential taxation
within an information medium distorts the marketplace of ideas by
imposing on some speakers costs not borne by their competitors.
See Grosjean, 297 U.S. at
297 U. S. 241,
297 U. S.
244-245 (noting competitive disadvantage arising from
differential tax based on newspaper circulation). Differential
taxation across different media likewise "limit[s] the circulation
of information to which the public is entitled,"
id. at
297 U. S. 250,
where, as here, the
Page 499 U. S. 459
relevant media compete in the same information market. By taxing
cable television more heavily relative to its social cost than
newspapers, magazines, broadcast television and radio, Arkansas
distorts consumer preferences for particular information formats,
and thereby impairs "the widest possible dissemination of
information from diverse and antagonistic sources."
Associated
Press v. United States, supra, 326 U.S. at
326 U. S. 20.
Because the power selectively to tax cable operators triggers
the concerns that underlie the nondiscrimination principle, the
State bears the burden of demonstrating that "differential
treatment" of cable television is justified by some "special
characteristic" of that particular information medium or by some
other "counterbalancing interest of compelling importance that [the
State] cannot achieve without differential taxation."
Minneapolis Star, supra, 460 U.S. at
460 U. S. 585
(footnote omitted). The State has failed to make such a showing in
this case. As the Arkansas Supreme Court found, the amount
collected from the cable operators pursuant to the state sales tax
does not correspond to any social cost peculiar to cable television
service,
see 301 Ark. 483, 485,
785 S.W.2d
202, 203 (1990); indeed, cable operators in Arkansas must pay a
franchise fee expressly designed to defray the cost associated with
cable's unique exploitation of public rights of way.
See
ibid. The only justification that the State asserts for taxing
cable operators more heavily than newspapers, magazines, television
broadcasters and radio stations is its interest in raising revenue.
See Brief for Respondents in No. 90-38, p. 9. This
interest is not sufficiently compelling to overcome the presumption
of unconstitutionality under the nondiscrimination principle.
See Arkansas Writers' Project, 481 U.S. at
481 U. S.
231-232;
Minneapolis Star, supra, 460 U.S. at
460 U. S. 586.
[
Footnote 2/2]
Page 499 U. S. 460
II
The majority is undisturbed by Arkansas' discriminatory tax
regime. According to the majority, the power to single out cable
for heavier tax burdens presents no realistic threat of
governmental abuse. The majority also dismisses the notion that the
State has any general obligation to treat members of the press
evenhandedly. Neither of these conclusions is supportable.
A
The majority dismisses the risk of governmental abuse under the
Arkansas tax scheme on the ground that the number of media actors
exposed to the tax is "large."
Ante at
499 U. S. 449.
According to the majority, where a tax is generally applicable to
nonmedia enterprises, the selective application of that tax to
different segments of the media offends the First Amendment only if
the tax is limited to "a small number of speakers,"
ante
at
499 U. S. 448,
for it is only under those circumstances that selective taxation
"resembles a penalty for particular speakers or particular ideas,"
ante at
499 U. S. 449.
The selective sales tax at issue in
Arkansas Writers'
Project, the majority points out, applied to no more than
three magazines.
See ante at
499 U. S. 448.
The tax at issue here, "[i]n contrast," applies "uniformly to the
approximately
100 cable systems" in operation in Arkansas.
Ibid. (emphasis added). In my view, this analysis is
overly simplistic, and is unresponsive to the concerns that inform
our selective taxation precedents.
To start, the majority's approach provides no meaningful
guidance on the intermedia scope of the nondiscrimination
principle. From the majority's discussion, we can infer that three
is a sufficiently "small" number of affected actors to
Page 499 U. S. 461
trigger First Amendment problems, and that one hundred is too
"large" to do so. But the majority fails to pinpoint the magic
number
between three and one hundred actors above which
discriminatory taxation can be accomplished with impunity. Would
the result in this case be different if Arkansas had only 50 cable
service providers? Or 25? The suggestion that the First Amendment
prohibits selective taxation that "resembles a penalty" is no more
helpful. A test that turns on whether a selective tax "penalizes" a
particular medium presupposes some baseline establishing that
medium's entitlement to equality of treatment with other media. The
majority never develops any theory of the State's obligation to
treat like-situated media equally, except to say that the State
must avoid discriminating against too "small" a number of media
actors.
In addition, the majority's focus on absolute numbers fails to
reflect the concerns that inform the nondiscrimination principle.
The theory underlying the majority's "small versus large" test is
that "a tax on the services provided by a large number of cable
operators offering a wide variety of programming throughout the
State,"
ante at
499 U. S. 449,
poses no "risk of affecting only a limited range of views,"
ante at
499 U. S. 448.
This assumption is unfounded. The record in this case furnishes
ample support for the conclusion that the State's cable operators
make unique contributions to the information market.
See,
e.g., App. 82 (testimony of cable operator that he offers
"certain religious programming" that "people demand . . . because
they otherwise could not have access to it");
id. at 138
(cable offers Spanish language information network);
id.
at 150 (cable broadcast of local city council meetings). The
majority offers no reason to believe that programs like these are
duplicated by other media. Thus, to the extent that selective
taxation makes it harder for Arkansas' 100 cable operators to
compete with Arkansas' 500 newspapers, magazines, and broadcast
television and radio stations,
see 1 Gale Directory of
Publications and Broadcast Media 67-68
Page 499 U. S. 462
(123d ed.1991), Arkansas' discriminatory tax does "risk . . .
affecting only a limited range of views," and may well "distort the
market for ideas" in a manner akin to direct "content-based
regulation."
Ante at
499 U. S. 448.
[
Footnote 2/3]
The majority also mistakenly assesses the impact of Arkansas'
discriminatory tax as if the State's 100 cable operators comprised
100 additional actors in a
statewide information market.
In fact, most communities are serviced by only a single cable
operator.
See generally 1 Gale Directory,
supra,
at 69-91. Thus, in any given locale, Arkansas' discriminatory tax
may disadvantage a
single actor, a "small" number even
under the majority's calculus.
Even more important, the majority's focus on absolute numbers
ignores the potential for abuse inherent in the State's power to
discriminate based on
medium identity. So long as the
disproportionately taxed medium is sufficiently "large," nothing in
the majority's test prevents the State from singling out a
particular medium for higher taxes, either because the State does
not like the character of the services that the medium provides or
because the State simply wishes to confer an advantage upon the
medium's competitors.
Indeed, the facts of this case highlight the potential for
governmental abuse inherent in the power to discriminate among
like-situated media based on their identities. Before this
litigation began, most receipts generated by the media -- including
newspaper sales, certain magazine subscription fees, print and
electronic media advertising revenues, and cable television and
scrambled satellite television subscription fees -- were either
expressly exempted from, or not expressly included in, the Arkansas
sales tax.
See Ark.Code
Page 499 U. S. 463
Ann. §§ 84-1903, 84-1904(f), (j), (1947 and Supp.1985);
see
also Arkansas Writers' Project, 481 U.S. at
481 U. S.
224-225. Effective July 1, 1987, however, the
legislature expanded the tax base to include cable television
subscription fees.
See App. to Pet. for Cert. in No.
90-38, p. 16a. Cable operators then filed this suit, protesting the
discriminatory treatment in general and the absence of any tax on
scrambled satellite television -- cable's closest rival -- in
particular. While the case was pending on appeal to the Arkansas
Supreme Court, the Arkansas legislature again amended the sales
tax, this time extending the tax to the subscription fees paid for
scrambled satellite television. 301 Ark. at 484, 785 S.W.2d at 203.
Of course, for all we know, the legislature's initial decision
selectively to tax cable may have been prompted by a similar plea
from traditional broadcast media to curtail competition from the
emerging cable industry. If the legislature did indeed respond to
such importunings, the tax would implicate government censorship as
surely as if the government itself disapproved of the new
competitors.
As I have noted, however, our precedents do not require
"evidence of an improper censorial motive,"
Arkansas Writers'
Project, supra, 481 U.S. at
481 U. S. 228,
before we may find that a discriminatory tax violates the Free
Press Clause; it is enough that the application of a tax offers the
"
potential for abuse,"
Minneapolis Star, 460 U.S.
at 592, (emphasis added). That potential is surely present when the
legislature may, at will, include or exclude various media sectors
from a general tax.
B
The majority, however, does not flinch at the prospect of
intermedia discrimination. Purporting to draw on
Regan v.
Taxation With Representation of Washington, 461 U.
S. 540 (1983) -- a decision dealing with the tax
deductibility of lobbying expenditures -- the majority embraces
"the proposition that a tax scheme that discriminates among
speakers does not implicate the First Amendment unless it
discriminates
on
Page 499 U. S. 464
the basis of ideas."
Ante at
499 U. S. 450
(emphasis added). "[T]he power to discriminate in taxation," the
majority insists, is "[i]nherent in the power to tax."
Ante at
499 U. S.
451.
Read for all they are worth, these propositions would
essentially annihilate the nondiscrimination principle, at least as
it applies to tax differentials between individual members of the
press. If
Minneapolis Star, Arkansas Writers' Project, and
Grosjean stand for anything, it is that the "power to tax"
does not include "the power to discriminate" when the press is
involved. Nor is it the case under these decisions that a tax
regime that singles out individual members of the press implicates
the First Amendment
only when it is "directed at, or
presents the danger of suppressing,
particular ideas."
Ante at
499 U. S. 453
(emphasis added). Even when structured in a manner that is
content-neutral, a scheme that imposes differential burdens on
like-situated members of the press violates the First Amendment,
because it poses
the risk that the State might abuse this
power.
See Minneapolis Star, supra, at
460 U. S.
592.
At a minimum, the majority incorrectly conflates our cases on
selective taxation of the press and our cases on the selective
taxation (or subsidization) of speech generally.
Regan
holds that the government does not invariably violate the Free
Speech Clause when it selectively subsidizes one group of speakers
according to content-neutral criteria. This power, when exercised
with appropriate restraint, inheres in government's legitimate
authority to tap the energy of expressive activity to promote the
public welfare.
See Buckley v. Valeo, 424 U. S.
1,
424 U. S. 90-97
(1976).
But our cases on the selective taxation of the press strike a
different posture. Although the Free Press Clause does not
guarantee the press a preferred position over other speakers, the
Free Press Clause does "protec[t] [members of press] from invidious
discrimination." L. Tribe, American Constitutional Law § 12-20, p.
963 (2d ed.1988). Selective taxation is precisely that. In light of
the Framers' specific intent
Page 499 U. S. 465
"to preserve an untrammeled press as a vital source of public
information,"
Grosjean, 297 U.S. at
297 U. S. 250;
see Minneapolis Star, supra, 460 U.S. at
460 U. S. 585,
n. 7, our precedents recognize that the Free Press Clause imposes a
special obligation on government to avoid disrupting the integrity
of the information market. As Justice Stewart explained:
"[T]he Free Press guarantee is, in essence, a
structural provision of the Constitution. Most of the
other provisions in the Bill of Rights protect specific liberties
or specific rights of individuals: freedom of speech, freedom of
worship, the right to counsel, the privilege against compulsory
self-incrimination, to name a few. In contrast, the Free Press
Clause extends protection to an institution."
Stewart, "Or of the Press," 26 Hastings L.J. 631, 633 (1975)
(emphasis in original).
Because they distort the competitive forces that animate this
institution, tax differentials that fail to correspond to the
social cost associated with different information media, and that
are justified by nothing more than the State's desire for revenue,
violate government's obligation of evenhandedness. Clearly, this is
true of disproportionate taxation of cable television. Under the
First Amendment, government simply has no business interfering with
the process by which citizens' preferences for information formats
evolve. [
Footnote 2/4]
Page 499 U. S. 466
Today's decision unwisely discards these teachings. I
dissent.
[
Footnote 2/1]
Subject to various exemptions, Arkansas law imposes a 4% tax on
the receipts from sales of all tangible personal property and of
specified services. Ark.Code Ann. §§ 26-52-301, 26-52-302,
26-52-401 (1987 and Supp.1989). Cable television service is
expressly included in the tax.
See § 26-52-301(3)(D)(i)
(Supp.1989). Proceeds from the sale of newspapers, § 26-52-401(4)
(Supp.1989), and from the sale of magazines by subscription, §
26-52-401(14) (Supp.1989); Revenue Policy Statement 1988-1 (Mar.
10, 1988), reprinted in CCH Ark. Tax Rep. � 69-415, are expressly
exempted, as are the proceeds from the sale of advertising in
newspapers and other publications, § 26-52-401(13) (Supp.1989).
Proceeds from the sale of advertising for broadcast radio and
television services are not included in the tax.
Insofar as the Arkansas Supreme Court found that cable and
scrambled satellite television are a single medium, 301 Ark. 483,
487,
785 S.W.2d
202, 204-205 (1990), this case also involves a straightforward
application of
Arkansas Writers' Project and
Minneapolis Star in resolving the cable operators'
constitutional challenge to the taxes that they paid prior to 1989,
the year in which Arkansas amended its sales tax to include the
subscription fees collected by scrambled satellite television. I
would affirm on that basis the Arkansas Supreme Court's conclusion
that the pre-1989 version of the Arkansas sales tax violated the
First Amendment by imposing on cable a tax burden not borne by its
scrambled satellite television.
[
Footnote 2/2]
I need not consider what, if any, state interests might justify
selective taxation of cable television, since the State has
advanced no interest other than revenue enhancement. I also do not
dispute that the unique characteristics of cable may justify
special regulatory treatment of that medium.
See Los Angeles v.
Preferred Communications, Inc., 476 U.
S. 488,
476 U. S. 496
(1986) (BLACKMUN, J., concurring);
cf. Red Lion Broadcasting
Co. v. FCC, 395 U. S. 367,
395 U. S.
386-401 (1969). I conclude only that the State is not
free to burden cable with a selective tax absent a clear nexus
between the tax and a "special characteristic" of cable television
service or a "counterbalancing interest of compelling importance."
Minneapolis Star, 460 U.S. at
460 U. S.
585.
[
Footnote 2/3]
Even if it did happen to apply neutrally across the range of
viewpoints expressed in the Arkansas information market, Arkansas'
discriminatory tax would still raise First Amendment problems. "It
hardly answers one person's objection to a restriction on his
speech that another person, outside his control, may speak for
him."
Regan v. Taxation with Representation of Washington,
461 U. S. 540,
461 U. S. 553
(1983) (BLACKMUN, J., concurring).
[
Footnote 2/4]
The majority's reliance on
Mabee v. White Plains Publishing
Co., 327 U. S. 178
(1946), and
Oklahoma Press Publishing Co. v. Walling,
327 U. S. 186
(1946), is also misplaced. At issue in those cases was a provision
that exempted small newspapers with primarily local distribution
from the Fair Labor Standards Act of 1938 (FLSA). In upholding the
provision, the Court noted that the exemption promoted a legitimate
interest in placing the exempted papers "on a parity with other
small town enterprises" that also were not subject to regulation
under the FLSA.
Mabee, supra, 327 U.S. at
327 U. S. 184;
see also Oklahoma Press, supra, 327 U.S. at
327 U. S. 194.
In Minneapolis Star, we distinguished these cases on the
ground that, unlike the FLSA exemption, Minnesota's discrimination
between large and small newspapers did not derive from, or
correspond to, any
general state policy to benefit small
businesses.
See 460 U.S. at
460 U. S. 592,
and n. 16. Similarly, Arkansas' discrimination against cable
operators derives not from any general, legitimate state policy
unrelated to speech, but rather from the simple decision of state
officials to treat one information medium differently from all
others. Thus, like the schemes in
Arkansas Writers'
Project and
Minneapolis Star, but unlike the scheme
at issue in
Mabee and
Oklahoma Press, the
Arkansas tax scheme must be supported by a compelling interest to
survive First Amendment scrutiny.
Cf. United States v.
O'Brien, 391 U. S. 367,
391 U. S. 377
(1968).